The National Insurance Company ... vs Smti. Jhulan Sarkar (Das) And 4 Ors
2023 Latest Caselaw 385 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA


                              Mac.App 46 of 2022

The National Insurance Company Ltd.
                                                                   ---Appellant(s)
                                     Versus

Smti. Jhulan Sarkar (Das) and 4 Ors.
                                                                ---Respondent(s)

For Appellant(s)                : Mr. A. K. Deb, Adv.
For Respondent(s)               : Mr. A. De, Adv.
Date of hearing and date of
judgment and order              : 16.05.2023.
Whether fit for reporting       : No

                 HON'BLE MR. JUSTICE T. AMARNATH GOUD

                           Judgment & Order (Oral)

This is an appeal under Section 173 of the M.V. Act against the award

dated 30.03.2022 passed in TS(MAC) 216 of 2017 by Motor Accident Claims

Tribunal, Court No.5, Agartala, West Tripura modifying the impugned award.

[2] For the sake of brevity the parties are referred to as in the cause title

of Title Suit (MAC) 216 of 2017. The brief fact of the claimants case is that on

03.06.2017 at about 7 pm deceased Amrit Das was coming from Kamalghat Bazar

towards his house and when reached at Kamalghat, Santipara Chowmuhani, under

Lefunga PS. At that time the offending bike TR-01-AB-6818 came from

Laxmansingh Mura. By rash and negligent driving, the offending bike with very

high speed and dashed the deceased. As a result, deceased sustained multiple

grievous injury and was shifted to AGMC and GBP hospital by the local people but

after few hours deceased died. It is pleaded that at the time of his death, the

deceased was 28 years old and was earning Rs.20,000/- per month from

vegetable business and cultivation and claimants were dependent upon him.

[3] The case of the claimant is contested by OP No.1 the owner (and

rider) of the offending bike by filing written statement and pleaded that claimants

are not entitled to get any compensation as deceased did not receive any injury

due to the fault on his part. It is also pleaded that at the time of accident his bike

was duly insured with OP No.2 and he was having valid registration certificate and

other documents of the bike and therefore, liability, if any, is to be borne by OP

No.2. Thus OP No.1 prayed for dismissal of the claim of the claimants.

[4] The case of the claimants is contested by OP No.2 the Insurance

company by filing written statement denying the plea of the claimants and

pleaded that claimants are to prove their case by producing document and

insurance company is not liable to pay any compensation unless valid driving

license, documents of the bike is produced by the owner. It is further pleaded that

any breach of conditions specifically those relating to the driving license and use

of the bike may entitle the OP No.2 to avoid liability as per Section 149(2) of M.V

Act.

[5] On the basis of pleadings and documents, the following issues were

framed before the Motor Accident Claims Tribunal, West Tripura, Agartala:

(i) Whether the present claim petition is maintainable both in law and facts?

(ii) Whether the predecessor of the claimant petitioners died as a result of an

accident occurred on 03.06.2017 at about 07 pm at Kamalghat, Santipara

Chowmuhani within the jurisdiction of Lefunga PS, West Tripura involving the

vehicle bearing Registration No.TR-01-AB-6816 (Motor bike)?

(iii) Whether the claimant-petitioners are entitled to get compensation as prayed for

and, if so, who shall be liable to pay the compensation and upto what extent?

[6] Finally by the impugned order dated 30.03.2022, the Motor Accident

Claims Tribunal, Court No.5, Agartala, West Tripura observed in the following

manner:

"The OP No.2, The Divisional Manager, The National Insurance Company Ltd, is directed to deposit the awarded compensation of Rs.34,22,000/- (Rupees thirty four lakhs twenty two thousand) only within 30 days from today with interest thereon at the rate 8% per annum with effect from date of filing of the claim application i.e. from 14.12.2017 to till realization of the full.

Distribution of Compensation

The claimant No.1 being the wife is entitled to 50% of total compensation.

The claimant No.2, 3 and 4 are equally entitled to the rest 50% of compensation.

Protection Awarded compensation

The 40% of the amount of claimant No. 1 is to be deposited for 5 years.

As claimant 2 and 3 are minor the full amount of them are to be fixed deposited for the period till they attained 21 years respectively.

The 30% of the amount of claimant No.4 is to be deposited for 5 years.

The remaining amount of compensation of claimants No.1 and 4 are to be released in their favour in their bank accounts.

The interest on the fixed deposit can be withdrawn by claimants. However, in case of necessity, the Tribunal can be approached for withdrawal fixed deposit amount. On maturity of the fixed deposits the Banker shall credit the amounts to be sole SB Accounts of claimants without any further order from the Tribunal."

[7] Aggrieved thereby, the insurance company has approached this court

seeking relief inter alia;

(i) Admit the appeal

(ii) Call for the record of T.S (MAC) 2016 of 2017 from the Ld. Motor Accident Claims Tribunal, Court No.5, Agartala, West Tripura, District.

(iii) Issue notice upon the respondents and after hearing both the parties to modify the quantum of the awarded dated 30.03.2022 towards "just and proper compensation" including direction of the Tribunal to pay the awarded amount by the OP Insurer appellant to the claimant-respondents as per principle of "Pay and Recover" and to realize the same from the insured and also to direct the OP Owner respondent to pay the awarded compensation to the claimant-respondents after setting aside the impugned order dated 30.03.2022 passed in TS(MAC) 2016 by the Motor Accident Claims Tribunal, Court No.5, Agartala, West Tripura, District.

[8] Heard Mr. A. K. Deb, learned counsel appearing for the appellant-

insurance company and Mr. A. De, learned counsel appearing for the claimant-

respondents.

[9] Mr. A. K. Deb, learned counsel in course of the argument in support

of his contention placed his reliance in the apex court judgment in National

Insurance Co. Ltd vs. Swaran Singh and Others reported in AIR (2004) SC 1531.

After examining the same, this court feels that the said judgment is not applicable

to the present case in hand.

[10] This court, after perusing the entire records and having considered

the submission as advanced by the learned counsel for the parties, is of the

opinion that the awarded compensation of Rs.34,22,000/- be deposited to the

accounts of the claimant-respondents at the rate of 7.5% per annum. This court

is also not inclined to consider the monthly earning of the deceased to be around

Rs.18,000/- to Rs.20,000/- as certified by the Secretary Kamalghat Bazar. But

admittedly, it appears to this court that the deceased was a vegetable vendor in

the Kamalghat Bazar. Considering his business, this court feels Rs.500/- would be

his per day income which would accumulate an income of Rs.15,000/- per month.

So the monthly income of Rs.15,000/- of the deceased as decided by the court

below appears to be just and proper and needs no further interference of this

court.

[11] In view of the above discussion, the instant appeal is allowed and

thus disposed to the extent as indicated above.

JUDGE

Dipak